Stonewalled Foreclosure Conferences: Do Homeowners Have a Remedy at Hand?

 

In 2008-09, with home foreclosures skyrocketing in the wake of the economic meltdown[1], New York led the nation in developing measures to aid struggling homeowners. The state legislature enacted a law requiring that banks negotiate in “good faith” with homeowners at a mandatory court-supervised settlement conference within in sixty days of suing for foreclosure. The new law instructed the court system to issue rules granting the state’s judges “the necessary power and authority … to “ensur [e]” both side negotiate in good faith and that settlement conferences “not be unduly delayed or subject to willful dilatory tactics.”

Despite that sweeping authority, the good-faith law is silent on the question of remedy, and for the last five years, the requirement that banks negotiate in “good faith” with New York homeowners has been an obligation in search of a remedy. In a handful of rulings, the state’s appeals courts have only told the judges and referees responsible for supervising the settlement process what they could not do to compel banks to act in good faith.

With one exception, all of the appellate rulings have come out the Appellate Division, Second Department in Brooklyn, which hears appeals from the four counties with the highest number of pending foreclosures in the state: Nassau, Suffolk, Brooklyn and Queens. The sole other ruling was from the First Department, which sits in Manhattan.

Those rulings have rejected judges’ use of compulsory orders and punishing fines to force banks to reach a reasonable accommodation with homeowners or even to require them to make good on their offers to lower payment terms. Meanwhile, no appellate court has put its imprimatur on the most promising remedy that has been adopted by trial judges: the forfeiture of interest and other lender costs, including attorneys fees, which have mounted during delays caused by the absence of good-faith negotiations.

But, the issue is now coming to a head. At least two cases are pending—one in the First Department and one in the Second—squarely presenting the question of whether forfeiture, commonly referred to by lawyers as “tolling”)  is a viable remedy.

In the interim, the law books have become littered with cases, in which trial judges and referees have found that banks have failed to negotiate in good faith. Numerous opinions cite delays of up to two years and as many as 17 adjournments.

The causes have been manifold: banks had no representative present with authority to negotiate despite a clear statutory mandate to do so; bank representatives were unfamiliar with the cases and did not have critical documents related to homeowners’ loans; banks had backtracked on modification agreements even though homeowners had paid the lower amount for the three months required in many instances by federal guidelines—and often for many months more; and banks, only belatedly after months of negotiations, have advised homeowners and the courts that they were barred from negotiating any payment relief in situations where a mortgage has become part of a pool aggregated by an investment syndicate.

 

Two Pending Appeals

Both of the cases on appeal present those issues, which over and over again, have formed the basis of trial court rulings, finding the banks had not negotiated in good faith.

In the case pending in the Second Department [U.S. Bank National Association v. Green, 9220/09 (Kings County)], Brooklyn Justice Donald Scott Kurtz ordered the tolling of interest and related charges, confirming a referee’s finding that the mortgage holder, after ten months of back and forth, had denied the homeowner a modification even though the owner had successfully paid the lower amounts for three months.

At about the same time the holder, an investment syndicate, raised a new issue: it was forbidden from making any loan modification by the agreement it used to sell mortgage-backed securities.

To speed a resolution, the referee, who oversaw the settlement discussions, ordered syndicate officials, with personal knowledge of the pooling agreement, to attend the conference and produce associated documents. Nonetheless, the settlement process dragged on without resolution for another 19 months (bringing the total delay to more than two years) before the referee recommended to Kurtz that the syndicate be compelled to reinstate the 2010 trial modification. Kurtz in March 2013 ordered tolling but rejected the recommendation that the syndicate be ordered to re-activate its modification.

The case pending in the First Department also presents, in stark form, the same recurring problems that have hindered the settlement process.

As was the case in Green, the settlement process in Citibank v. Barclay (Bronx County) dragged on for 11 months without resolution,. During that time, the homeowner attended nine conference sessions, submitted six original applications for a loan modification and was on numerous occasions asked to submit additional documentation even though that information had previously been supplied. Also, similar to Green, the homeowner in Barclay had been engaged in the settlement process for nearly a year before being informed by Citibank that investor restrictions precluded it from modifying the mortgage.

Bronx Justice Robert E. Torres, the trial judge in Barclay, made specific findings related to several of those points. With regard to authority and knowledge, he noted that the bank’s loan adjuster had testified before the referee that she had personal authority to modify mortgages and that she had been personally involved with the homeowner’s loan modification for three years. But on cross-examination, he noted, she admitted that she was assigned to Barclay’s loan file shortly before the hearing and that she had been asked by the bank to “come in and …do a more in-depth detailed investigation of files.”

Torres also wrote that the bank’s “bit by bit requests at each conference only serve to unnecessarily delay the modification application process while racking up interest, fees and penalties to the [Bank’s] benefit and [Barclay’s] detriment.”

 

AG Office Cites Wells Fargo Violations

Lest there be any doubt about the extent of those problems, the New York State Attorney General’s Office has developed evidence that Wells Fargo Bank has committed close to 200 violations of standards developed to speed loan modifications. The standards are contained in a $25 billion settlement reached in 2010 between the nation’s attorneys general and five major banks, including Wells Fargo. The evidence, which consists of sworn declarations by advocates, together with supporting documentation, in cases involving 97 New York homeowners, has been offered by the state Attorney General’s Office in litigation seeking to force Wells Fargo to live up to the 2010 settlement, U.S.A. v. Bank of America, 12-cv-361 (District of Columbia). Read the Attorney General’s brief. The case has been briefed, and a decision is being awaited from U.S. Judge Rosemary M. Collyer.

Similarly, a report prepared by three legal services groups found a widespread failure of banks to have a representative with settlement authority and knowledge of the homeowner’s case present at settlement conferences. The three groups—JASA/Legal Services for the Elderly in Queens, Legal Services NYC and MFY Legal Services—sent observers to 252 settlement conferences conducted in the fall of 2013. The observers reported that in 80 percent of the cases the banks failed to have present representatives with the settlement authority and knowledge required by New York law. In 36 percent of the observed cases, no bank representative was present with the authority to settle as required by CPLR 3408(c) and in 44 percent of the cases the representative lacked sufficient information to permit a conference to proceed.

         Briefing in the Barclay case is nearly complete and is underway in Green. The two arguments have taken on outsized importance. Two months after Kurtz embraced tolling, but rejected mandating reinstatement of a withdrawn modification offer, the Second Department nixed specific performance in Wells Fargo Bank v. Meyers, 108 A.D3d. 9 (May, 2013). In Meyers, however, Justice Thomas A. Dickerson, who wrote for a unanimous panel, underscored the need for guidance from either the legislature or the court system as to what type of remedies should be imposed for violations of the good-faith requirement.

Further, earlier this year, a push by homeowners’ advocates for legislation spelling out remedies fell to the wayside as legislators limited their efforts to extending the mandate for settlement conferences  another five years to 2020.

 

Court System’s Unexercised Power

In Meyers, Dickerson pointedly drew attention to the court system’s failure to develop sanctions for “egregious behavior” by the banks or their counsel despite having been specifically authorized by the legislature to do so.

Dickerson quoted from a provision in legislation adopting the good-faith obligation which “expressly” provided that the rules to be promulgated by the Chief Administrator of the Courts to govern settlement conferences “may include granting additional authority [to the states’ judges] to sanction the egregious behavior of a counsel or party.” Read the statute.The court system’s authority to issue a specific sanction or remedy has not been exercised, he wrote.

Meyers, much like the two cases pending on appeal—Green and Barclay—presented issues of the recurring problems experienced by homeowners in the settlement process. In Meyers, the homeowner attended eight court appearances which stretched out over eight months; was offered a modification lowering his monthly mortgage payments by $700 and met those payments for at least seven months; and was advised by the bank—six months after it had proposed a modification—that investor restrictions precluded the changing of the loan’s terms.

Nonetheless, the Second Department rejected the use of specific performance (legal jargon for a compulsory order to reinstate a withdrawn modification) despite sympathetic facts. The homeowner was a New York City police officer, Paul Meyers, who had taken a second job and worked overtime to keep up with his mortgage payments. In 2009, Meyers fell behind in his payments when he lost his second job and the NYPD cut back on overtime. Further his wife, Michela, testified at a good-faith hearing before then-Suffolk Justice Patrick A. Sweeney that Wells Fargo employees told her that a modification could not be offered unless she and her husband defaulted on their payments; and they had followed that advice.

Sweeney, finding bad faith after conducting a three-day hearing, ordered Wells Fargo Bank to reinstate the September, 2009 modification offer and dismissed the foreclosure proceeding. But, the Second Department reversed, concluding that an offer of a trial modification is not a binding contract and to enforce it would violate the Contract Clause of the U.S. Constitution.

Some lawyers for homeowners, who have examined the trend of the Second Department’s post-Meyers decisions, have raised questions whether they will support a ruling upholding tolling as a viable remedy for good-faith violations. But, Karen Gargamelli, the lawyer with Common Cause NY who is handling the Barclay appeal in the First Department, called such an outcome “inconceivable.”

 

Recent Signs of Progress

Since Meyers was handed down, there have been some signs that progress has been made with respect to some of the problems that have bogged down the settlement process. First, the state Attorney General’s network, which consists  of 90 groups the office has funded to provide lay counseling and legal aid to homeowners, has helped one-third of the 28,000 clients it has worked with to obtain modifications or, at least, the possibility of a modification, according to Melissa Grace, a spokeswoman for the office.

Out of that universe, the Attorney General’s network represented 8,000 homeowners during the settlement process. No separate data was provided concerning the success of those clients in obtaining modifications. The network is funded with $60 million the Attorney General’s Office received from the 2010 nationwide settlement with five major banks.

Second, the court system in late June authorized administrative judges in Nassau, Suffolk and Brooklyn to receive direct referrals of cases from referees (bypassing the judge to whom the case has been assigned) to hear legal issues that they do not have the authority to resolve. Court sources suggest that since judges, but not referees, are empowered to order sanctions, that the change will speed rulings on disputes over whether banks are acting in good faith.[2] Read the memo.

Third, homeowner advocates report that Bank of America in April flew into New York about a dozen workout specialists, led by two bank vice presidents, who ended working on two days with close to 100 Nassau County homeowners facing foreclosure. Maria DeGennaro, an attorney with the Empire Justice Center who oversees the work of 13 homeowner advocacy groups on Long Island, stated that the Bank of America had taken initiative in asking the courts to set aside one day with all Bank of America cases on the conference calendar.

“The workout specialists provided something that is sorely missing in most conferences,” DeGennaro added, “real-time information about the status of modification requests, with the result that some cases were resolved on the spot.” The 13 Long Island-based groups are a part of the network of agencies funded by the New York State Attorney General’s Office to provide counseling and representation to homeowners struggling with their mortgages.

Unfortunately, there is little data available to assist the state’s appellate judges as they wrestle with the problem of shaping appropriate remedies when banks fail to act in good faith. The annual report issued by the court system provides little meaningful information other than the number of homeowners who are represented during the settlement process. According to the 2013 report, 54 percent of the families participating in settlement talks during that year had representation.

The Attorney General’s office has not yet compiled data on the number of homeowners who lost their homes during the settlement process, Ms. Grace said, because the conference process is dynamic and yields hundreds of possible outcomes.

 

©DanielJWise

 

 

[1] The number of foreclosures in 2009 jumped by nearly 80 percent for pre-meltdown levels to 47,664. In 2013, there were 33,773 foreclosure filings statewide.

[2] Memorandum written by First Deputy Administrative Judge Lawrence K. Marks, dated June 26, 2014. Trial Justice Martin Schulman will perform the “backup” function in Queens.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Scheck Takes a Different Tack in Friedman Case

Barry Scheck, a founder of the Innocence Project who has written the “book” on how to conduct post-conviction investigations, in a surprise move yesterday, submitted an affirmation supporting Jesse Friedman motion for a full-blown fact hearing seeking to overturn his 1998 guilty plea to molesting young boys in his Great Neck home. Read the affirmation.

Scheck was one of four outside experts tapped by Nassau District Attorney Kathleen Rice to “guide” her office’s review of Friedman’s 1998 plea. Rice agreed to conduct a post-conviction review after a blistering opinion was issued by the U.S. Court of Appeals in Manhattan, which strongly suggested she had an ethical obligation to do so.

The Second Circuit’s opinion, in turn, drew heavily from material in a widely acclaimed documentary “Capturing the Friedman” which was nominated for an Oscar in 2003.

Friedman served 13 years in prison and upon his release in 2001 was classified as a top-level sexual offender.

Scheck’s affirmation comes, almost to the day, a year after Rice’s office completed its review, which found no basis for overturning his conviction, a finding that at the time was embraced by the four-member advisory panel. In a four-page statement released last June 25, the panel put its imprimatur on the District Attorney’s review, stating that the attorneys conducting the review “did an excellent job under difficult circumstances.” The advisory panel further wrote, “we have no doubt [if warranted by the facts] that the Review Team was prepared to recommend without reservation that Friedman’s conviction be overturned. But that is not how the facts played out for the review team.”

There is a stark difference between the content and tenor of the June 25, 2013 document, and the affirmation Scheck submitted this morning, in which he “urge[d] the court to accord Mr. Friedman a full evidentiary hearing on the merits of his claims.”

In breaking with the conclusion of the other three advisory panel members, Scheck states that it would be “desirable” to review, among other documents, materials not available to Advisory panel such as grand jury minutes, the original case file …”

In his affirmation, Scheck states that the panel was aware that those materials were never given to the defense. In fact, he states that “ordinarily, following best practices in a Conviction Integrity Review it is desirable to have substantial disclosure of the prosecution’s file, grand jury minutes and police reports to the defense.” Those views are also expressed in an article Scheck wrote for the Cardozo Law Review in 2010, entitled “Professional and Conviction Integrity Programs: Why We Need Them, Why They Work and Models for Creating Them.”

In fact, Friedman’s lawyer, Ronald Kuby, made repeated effort to get access to those materials from the District Attorney’s office during its three-year investigation into the validity of Friedman’s plea. Friedman’s team also pressed Scheck that, despite the “best practices,” the prosecution had not provided it with grand jury and police materials.

Scheck, through a spokesman, declined to comment. The District Attorney’s Office has taken the position that those documents are required to remain confidential because they contain the names of sex victims. Friedman’s lawyers contend that the victims’ names could be redacted.

 

DA Ordered to Turnover Documents

Two months after the DA’s office issued its 155-page report re-validating Friedman’s conviction, Nassau County Supreme Court Justice F. Dana Winslow granted Friedman’s motion and ordered the DA’s office to provide the defense with all records maintained by the Nassau County Police Department and the District Attorney’s office, including grand jury minutes. The District Attorney’s office has appealed Winslow’s order, which has been stayed until the Appellate Division, Second Department issues a ruling. The panel’s four-page report last June stressed that its “primary focus” was on “process issues.”

The report listed four-areas for its inquiry but there was no reference to the “best practice” of broadly sharing materials with the defense related to the investigation and the ensuing prosecution. In his Cardozo Law Review, Scheck pointed to the Dallas District Attorney’s Office as having the “most prominent and successful” Conviction Integrity Unit in the nation. The very first of that office’s “best practices,” listed by Scheck, was if “a plausible claim of innocence” is presented, the integrity unit should make “the prosecution’s entire file, including work product” available to lawyers asserting the innocence claim.

There can be little doubt that Rice tapped her advisory committee for its halo value. Scheck, in that regard, is the first among equals. He became a national figure for his work with the “dream team” in the O.J. Simpson case and as co-head of the Innocence Project, which he founded with Peter Neufeld in 1992. At the innocence project, mainly through the use of DNA evidence, Scheck has had an outsized role in elevating claims of actual innocence onto the nation’s legal agenda.

The three other members of the advisory panel are also prominent in their fields and bring extensive experience with the criminal-justice system to the task of post-conviction review: Mark F. Pomerantz, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and former head of the Criminal Division of the U.S. Attorney’s Office in the Southern District of New York; Patrick J. Harnett who headed the police department in Hartford, Conn. after a 32-year career with the New York City Police Department; and Susan Herman, a professor at Pace Law School and former executive director for the National Center for Victims of Crime.

Scheck’s affidavit seeks to justify his belated concern for the integrity of Friedman’s conviction upon unspecified “very specific claims that there are a number of serious substantive errors in the Rice report.” Those claims were contained in Friedman’s motion in Nassau County Court for relief from his conviction. It is Friedman’s third application for post-conviction relief (one in federal court and the other also in Nassau County).

Friedman filed for post-conviction relief this morning without awaiting a determination as to whether he is entitled to the broad discovery that Winslow ordered he receive. Perhaps, his game plan will be to move to supplement his motion if the Second Department affirms Winslow. In any event, Scheck—by highlighting the need for a broad hearing at which grand jury and police department materials will be available to Friedman’s lawyers—is putting a spotlight on an issue pending before the Second Department. While that has no legal relevance to the issues before the appeals court, there can be little doubt that public perceptions are an important backdrop to the court’s deliberations.

Rice used the advisory panel to create a public perception that her office’s work was unimpeachable. With Scheck’s new affidavit in hand, is not Friedman’s team attempting to do the same thing?

 

The Lines Have Been Drawn

In its 2010 ruling, the Second Circuit found that the prosecution consisted of a toxic brew of aggressive interview tactics, a hostile judge, junk science and tabloid coverage that sent the Great Neck community into a “moral panic.”

Writing for the U.S. Court of Appeals for the Second Circuit, Judge Edward R. Korman found the evidence against Jesse Friedman “extraordinarily suspect,” giving rise to “serious issues as to [his] guilt” ( Friedman v. Rehal, 618 F.3d 142).

Director Andrew Jarecki, in the three years he spent making the film, compiled material in which detectives described how they pressed the alleged young victims to make statements and also acknowledged recruiting psychotherapists to treat them. Likewise, film highlighted material from a clandestinely recorded interview of a 13-year old who was told by a detective that unless he acknowledged that he had been molested there will be “a little monster inside you … which every now and then rears its ugly head.”

The District Attorney’s Office heatedly disputed the film’s portrayal of events in the case, complaining that in one instance unedited transcripts showed that Jarecki used “selectively edited and misleading film portrayals.” It also countered that the clandestinely recorded tape of the 13-year old’s interview is missing and that the only evidence is from notes taken by Friedman’s prior attorney notes taken when he viewed the video.

The DA’s report also stated that Jesse Friedman’s father, Arnold Friedman confessed to Jesse’s uncle (who was shown in the film as being very distressed with Friedmans treatment), that both father and son had been involved in the abuse.

Arnold Friedman, who conducted afterschool computer classes in the family’s Great Neck Home, had pleaded guilty to molestation charges and committed suicide while in prison. Jesse Friedman, who was 19 at the time he pleaded guilty, assisted his father in conducting the classes

©DanielJWise2014

 

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Budget Cuts Taking Toll on Court Workers

As this year’s state budget negotiations come to a climax, the court system is dealing with an increasingly restive workforce. The rising tensions were evident when more than 100 court clerks at 60 Centre Street rallied at a meeting last week to support one of their own, who had refused to open a judge’s courtroom because no court officer was present.

Tensions among court clerks and other court employees have been rising since budgetary restrictions first forced the Office of Court Administration to start reducing staff with an early retirement incentive program in 2010. With its members straining to do more work with less people, the New York Court Clerks Association filed suit last December seeking overtime pay for its thinned ranks.

The early retirement program was followed in 2011 with forced layoffs after Governor Andrew Cuomo and the state Legislature cut the court system’s budget request by $170 million. As a result, Supreme Court citywide has 263 fewer clerks today than it had at the end of 2010, a decline of 15 percent. Throughout the state, the courts have lost 1,900 employees.

“My members are outraged that for the last three years they have struggled with increased workloads caused by staff shortages,” said Joe Walsh, the president of the court clerks association. “Now that the situation has crystallized into a public safety issue it has reached a flashpoint. “

The Supreme Court is similarly struggling with fewer court officers. At the time of the incident last week in Justice Anil Singh’s courtroom, three other courtrooms at 60 Centre Street had no court officers assigned to them, according to Patrick Cullen, the president of the 1,350-member New York Supreme Court Officers Association.

Cullen said that since 2010, attrition has resulted in the loss of 150 court officers in Supreme Courts in New York City and the mid-Hudson Valley. The problem of having not enough court officers to cover courtrooms has been “pervasive” over the last few years, he added.

A crisis in Justice Singh’s courtroom was averted when the clerk, who had refused to open his courtroom, relented after an administrative judge intervened, according to the New York Post.

Even so, anger continues to boil beneath the surface as illustrated by the clerks union’s lawsuit in New York Court Clerks Association v. Unified Court System of the State of New York, 13-7691. In its complaint, which has been assigned to Southern District Judge Robert W. Sweet, the union analyzed information contained in court system computers to show that clerks often work extra hours during the week and over weekends to keep up with an increasing flow of cases, according to the complaint.

One clerk alone has worked 133 extra hours without any compensation, according to that analysis. The union’s examination of work performed by 22 clerks revealed that 18 of them had worked extra hours without any compensation, let alone time-and-a-half overtime pay as required by the Fair Labor Standards Act.

That information was culled from OCA’s Universal Case Management System, which contains a time stamp for every piece of work a clerk enters into the system, explained Walsh, the clerk union president. OCA voluntarily extracted the data for the 22 employees at the union’s request but then balked at providing more information, Walsh said.

As sympathetic as the clerks’ plight seems, the union faces substantial factual and procedural hurdles in its lawsuit. OCA contends that any extra hours worked by the clerks were done as volunteers, and the clerks are not entitled to overtime unless they first receive permission to work extra time from their supervisors. Also, the union, faced with adverse rulings prohibiting federal courts from awarding monetary damages against states, has dropped its claims for monetary damages and injunctive relief, and is only seeking a prospective declaratory judgment.

The union described OCA’s position in its complaint as a subterfuge, claiming that the court system had “created a climate where clerks felt compelled to work past normal hours in order to finish their work, and court managers, under pressure to have the work done, allowed it to happen.”

Whether any relief for the staff shortages is on the horizon hinges on the outcome of budget negotiations in Albany. The court system’s budget request for the state fiscal year starting on April 1 calls for a $44.2 million budget increase to $1.81 billion. That 2.5 percent increase is necessary to put the courts on the “road to recovery” Chief Administrative Judge A. Gail Prudenti told a joint Senate-Assembly budget hearing in February, according to the New York Law Journal.

Governor Andrew Cuomo has criticized the court system’s budget request, saying it should be limited to 2 percent. The shaving of .5 percent off the courts’ request would cost the court system $9 million, which could hamper it in achieving on the “road-to-recovery” goals: the ending of a hiring freeze which has, with only very limited exceptions, prevented the court system from replacing any workers who depart.

 

©DanielJWise2014

 

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How Racist Image Led to Ouster of A Top Official in NY County Clerk’s Office

Last summer Justice Milton A. Tingling brought two photographs of shockingly racist and misogynistic images to the attention of the administrative judge in charge of the Supreme Court at 60 Centre St. in Manhattan.

In his cellphone, Tingling had a photograph of an illustration from a children’s book, which contained an illustration of an ape and a bird. Scrawled across the illustration were the phrases: “Nigger be like” and “I love me a bitch bird.” A second photograph captured an illustration of an ape-like figure using similarly vulgar language.

The images had been hanging on a wall of the New York County Clerk’s records room in the basement of the 60 Centre Street courthouse. The wall is about 30 feet directly behind the counter where the public goes to requisition case files. Three sources reported the images and inscription; one of them read to me what had been written on the two illustrations. Also, just this week, the union that represents the workers in the records room reported in its March newsletter that “a few workers” at 60 Centre Street took cellphone pictures of “racist posters involving monkeys and apes.”

The meeting held between Tingling and his administrative judge, Justice Sherry Klein Heitler, in late July or early August, set off a chain of events which led to the forced resignation of Chief Deputy County Clerk James A. Rossetti the following December. Rossetti had been the top aide and heir apparent to New York County Clerk Norman Goodman, who, now 90, has held the post for the past 45 years. Rossetti had been the number-two man in the office since 1985.

There has been a near news blackout on the events, which led to Rossetti’s dismissal and upended the expected line of succession in the County Clerk’s Office. The New York County Clerk serves one of the most important, and busiest, trial courts in New York State. His office is the custodian of court files for the Supreme Court in Manhattan and performs a vital function in processing court rulings into legally enforceable judgments and orders. The office is also responsible for assuring the smooth flow of jurors to trial courtrooms throughout the borough.

The only news story, prior to the one in the union newsletter, to appear on Rossetti’s departure ran in the New York Law Journal on Dec. 18, two days after Rossetti had submitted his resignation ahead of a deadline set by Deputy Chief Administrative Judge Fern A. Fisher, according to a source close to Rossetti. Citing unnamed sources, the seven-paragraph item reported that Rossetti had resigned rather than accept a suspension and demotion.  According to the article, a report compiled by the court system’s Inspector General’s Office found that he had been lax in responding to the offending images and had “mis [led]” investigators. The Inspector General’s (IG) report found that Rossetti was not responsible for posting the images. The union newsletter did not identify Rossetti by name, but referred to him by his title, “Deputy County Clerk.”

The Office of Court Administration refused the Law Journal access to the Inspector General’s report, which was based upon an investigation that spanned several months. David Bookstaver, OCA’s spokesman, has continued to maintain that stance, saying all information relating to the disciplining of court employees is confidential and not subject to release to the public.

There is much that was left unsaid in the anodyne information given to the Law Journal. There was no mention of Tingling’s involvement; nor that two other County Clerk employees were disciplined along with Rossetti; nor that District Council 37 either joined OCA or, on its own initiated, the IG investigation; nor of the harsh manner in which Rossetti was treated, including that he was reportedly disciplined without being given a copy of the IG report or a meaningful opportunity to defend himself.

The new information I have come across creates many unanswered questions. What did Rossetti do to warrant punishment? Was the punishment proportionate to what he had done? How and why did Tingling become involved? Did the question of Goodman’s successor have any bearing on the way events unfolded?

In the absence of official information, I have been limited to sources, who have asked not to be identified. I have spoken to sources both inside and outside the court system. Some of the outsiders are close to Rossetti and others to Tingling. The two principal players both come with political pedigree from Harlem. Tingling’s father, Milton Tingling Sr., was also a Supreme Court Justice elected in Manhattan, and Rossetti is related to Frank G. Rossetti, a Democratic politician from East Harlem, who was the Democratic Party leader of Tammany Hall from 1967-77.

My tentative read on the information that has become available is that it is more likely than not that Rossetti misled his superiors; that his treatment was overly harsh and his punishment possibly so; and that Tingling had no ulterior motive for bringing the photographs to Heitler’s attention. Likewise, my reporting found no basis for concluding that OCA’s actions were influenced by the looming question of who will be Goodman’s successor. That decision will ultimately be made by the Appellate Division in Manhattan.

What Did Rossetti Do?

On the morning that Tingling called Heitler to report the offensive images in the records room, Heitler convened a meeting in her chambers, which included Rossetti, Tingling and John Werner, the chief clerk at 60 Centre Street, according to sources. She dispatched Rossetti to the records room to see what was there. He reported back that he did not see anything offensive, several sources reported.

Court employees had first started posting photographs and articles on the wall after the Sept. 11 attack, focusing on court workers who had been involved in the rescue effort. Over the years the postings had grown to include many others, including a photograph of President Obama and the First Lady on election night. The number of postings had grown into the hundreds, one source said. Two sources said that Rossetti had ordered all the postings taken down when he inspected the wall for Heitler.

Given the inflammatory nature of the images, it is possible that someone may have discovered them that morning and ripped them down. Many of the workers in the records room are black and may well have been outraged upon discovering the posts. But that scenario does not seem plausible for two reasons. First a source, who had no connection to either side, but had access to the area behind the counter, told me that the offensive post, bearing the N-word, had been on the wall for “quite some time.” Secondly, someone from behind the counter apparently had taken the photographs and forwarded them to Tingling, which suggests that was the route of redress the workers had taken. That notion is reinforced in the union newsletter’s report that “several workers at 60 Centre Street” took cellphone photographs of “racist” images involving “monkeys and apes.” The newsletter article did not state, however, that those cellphone photographs had been forwarded to Tingling’s cellphone.

Also, several sources told me that two workers, in addition to Rossetti, were caught up in the IG investigation. One of them, Joseph Antonelli, a 44-year veteran, who had been chief clerk of the office’s Court and Records Division, reportedly was pressured to resign in January 2014, earlier than he had planned. The other, Midgalia Ruiz, was the supervisor of the workers responsible for retrieving court files for the public. Near the outset of the IG investigation, Ruiz was re-assigned from the records room to a County Clerk’s office in the nearby Surrogate’s Court. Ruiz agreed, according to sources, to accept a suspension and a demotion. The union that represents her, the Civil Service Employees Association, did not return a phone call asking for a comment on her behalf.

Several sources describe a tense relationship between Ruiz and the workers under her. That suggests a management problem that may have gone unaddressed in the office.

It is unclear precisely when the union became involved. Cliff Koppelman, the president of the DC 37 local that represents the records room workers, confirmed that it had filed a complaint, but refused to comment further.

The article in the union newsletter, however, states that the IG investigation began after several union members went “to the union and state Supreme Court Justice Milton Tingling” to complain about “racist pictures and posters on the walls of the New York County Clerk’s record room.”  Koppelman was quoted in the article as saying that several union members from the record room “came forward to testify before the IG about the situation.”

My impressions related above come with a caveat. Without access to the IG report there may well be significant information that I am unaware of. Also, the information I have obtained raises other questions that I can not answer. For instance, other than rank speculation, there is no explanation as to why Rossetti would have withheld information from Heitler.

Further, the Law Journal’s unofficial report leaves unanswered the question of whether the IG report reached a conclusion as to who posted the offensive images. The article does state, however, that investigators concluded that Rossetti was not responsible. The message of the phrases written on the two illustrations was clearly out of bounds. But the use of puerile, street talk is just plain weird.

Rossetti’s Treatment and Punishment

When the IG report was complete, Fisher, the administrative judge in charge of courts within New York City, summoned Rossetti to an 11 a.m. meeting in her chambers at the New York County Civil Court on Friday, Dec. 13. At the meeting, she informed Rossetti that OCA had decided that he should receive a 90-day suspension without pay, a demotion that would slice $16,000 off his $144,000 annual salary and a new assignment in a borough outside Manhattan. Rossetti had no civil service or union protection. According to sources, Rossetti was not given a copy of the IG report and merely told that court officials had “lost confidence” in his ability to manage the office.

Fisher gave Rossetti until 5 p.m. the following Monday to advise her whether he was willing to continue to work at the office under those conditions. At the conclusion of the meeting Rossetti was instructed to return to his office and collect his personal belongings.  A court officer, in civilian clothes, then escorted Rossetti back to his office in the Supreme Court two blocks to the south on Centre Street and accompanied him as he collected his belongings and exited the building. Rossetti’s pay was suspended immediately.

On Monday, Dec. 16, Rossetti tendered his resignation. Rossetti was 58 at the time, which meant that his forced resignation was costly even though he had worked for the County Clerk’s Office for 28 years. The state pension system imposes a significant penalty on employees who are less than 62 when they retire with less than 30 years of service.

This narrative is mainly provided by a source close to Rossetti, but many workers in the County Clerk’s Office saw Rossetti being escorted out of the office.

 

Tingling’s Involvement

 Despite suggestions from the Rossetti camp that the proceeding against him had been “a very strange hanging,” no one pointed to anything the least bit untoward in Tingling’s actions. As best I can tell, he did what any person would do when receiving the information that he did—he reported it to his administrative judge. Indeed, he probably would have been derelict if he had not reported it.

A source close to Tingling said that last fall, when the IG investigation was in full swing, Tingling had told persons in the courthouse that he was interested in the job. A second source inside the courthouse also told me that a rumor was widespread that Tingling was interested in succeeding Goodman. But, subsequently the source close to Tingling said that he was no longer interested in becoming County Clerk.

Moreover, since the rumors surfaced at least two months after Tingling’s meeting with Heitler, there is nothing to suggest that Tingling had a motive to do anything other that report the photographs in an effort to get them taken down as quickly as possible.

When I questioned Tingling about the rumors, he stopped short of giving me a straight out denial. He acknowledged hearing the rumors, and said, “I am running for re-election. My sole objective is to be reelected to the Supreme Court.” Tingling’s 14-year term expires this year and he is running for a second term.

A Sense of Mistreatment

During his many years as the go-to person at the County Clerk’s Office, Rossetti was highly regarded by lawyers and judge alike as helpful, competent and professional. Several sources said that his punishment was too harsh even assuming the accuracy of the Law Journal report that the IG office concluded that Rossetti had misled investigators.

A retired judge, who said that over the years Rossetti had smoothed out problems for many judges, suggested the punishment was disproportionate. “Why couldn’t [OCA] have gone to him and said, ‘Hey, schmuck, don’t do this again?’ ”

A court insider said that the “administrators downtown should have found a better way of working this out without trashing the careers of two valued and veteran employees.”

Two court insiders expressed dismay over the way the matter had been handled by OCA. One insider likened Rossetti’s treatment to the “star chamber” in that he “was let go after so many years without ever being told what the issue was.”  The other said it was “shocking” that a court official at Rossetti’s level could be forced out of office without having any due process rights to defend himself.

A managing attorney at one of the city’s most prestigious firms saw irony in no due process being given to a top official in a courthouse, which is revered as a ‘Hall of Justice.’ ”

Edited by Cerisse Anderson

DanielJWise@2014

 

 

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Wise in The Nation: Scheindlin’s Ouster Sets Dangerous Precedent

First published in The Nation (http://www.thenation.com) on Jan. 8

Removing the Judge Who Ruled ‘Stop and Frisk’ Unconstitutional Is a Blow to Justice
Dan Wise | January 8, 2014

Three days before he was sworn in as New York City’s 109th mayor, Bill de Blasio announced he would drop the city’s appeal of Judge Shira Scheindlin’s ruling finding the NYPD’s aggressive stop-and-frisk tactics unconstitutional.
That was good news for New Yorkers. Nearly 90 percent of the 4.4 million people the police stopped for questioning between 2004 and 2012 had done nothing wrong, according to evidence presented at a nonjury trial Scheindlin conducted last spring.

But the announcement leaves in limbo a devastating ruling by a federal appeals court panel, which removed Scheindlin as the judge presiding over challenges to the NYPD’s stop-and-frisk policing since 1999. The removal order was a crushing blow to Scheindlin’s professional standing and sent a chilling message to other judges: tread carefully when handling cases that challenge government action.

Scheindlin issued two rulings last August. One found the NYPD’s stop-and-frisk procedures unconstitutional, and the other ordered the city to implement reforms under the supervision of a court-appointed monitor.
The class plaintiffs in the stop-and-frisk challenge have asked the entire Court of Appeals for the Second Circuit to review the removal order, issued by a three-judge panel of the court. But given the legal posture of the case—a new judge has already been assigned to preside over it, and the panel has ordered the request for review held in “abeyance”—it is likely the full-court review will never take place.

Should the panel’s removal order remain on the books, it would set a terrible precedent. The court’s removal of Scheindlin even before it decided the appeal was very likely unprecedented. Moreover, the ruling was so marred by departures from customary practices as to raise questions about the panel’s neutrality.
In a sign of undue haste at a court known for its attention to detail, the unsigned ruling contained a glaring error, which the three judges were forced to correct two weeks later. Further, the panel removed Scheindlin even though the city never sought her removal in the case; the panel then faulted her for taking a step the city had not objected to six years earlier—and it did so in a manner that precluded her from defending herself from the suggestion that she had been unethical.

Research by University of Virginia Law School professor Toby Heytens, soon to be published in the Stanford Law Review, underscores the aberrant nature of the panel’s removal order. Heytens found that appeals court replacements of trial judges have been highly unusual. More important, he did not find a single case issued by any of the nation’s thirteen federal circuit courts in which removal was required before an appeal had been decided on the merits.

That does not mean the city didn’t have a route to seek Scheindlin’s removal. It could have asked her to recuse herself; if she refused, it could have taken the issue to the Second Circuit, where it would have had to demonstrate her bias, and she would have had an opportunity to defend herself.

The importance of having such an opportunity is underscored by the way the circuit’s initial order was drawn. Scheindlin’s replacement was required, the panel wrote, because she “ran afoul” of her ethical duty to maintain the “appearance” of fairness. Two weeks later, the panel rolled back its misconduct finding, but the revised order did not remove the stain on Scheindlin’s reputation, and despite the softer formulation, the panel did not back off its removal. Why insist on what the court’s own precedents describe as an “extraordinary remedy” if her conduct was not serious enough to warrant it?

Nor were the panel’s reasons for removing Scheindlin persuasive. It faulted her for suggesting to the challengers in 2007 that they file a new “related case” rather than extending a 1999 settlement. In an exception to the standard practice of randomly assigning cases, a court rule permitted Scheindlin to handle both cases as long as they were related. The two cases were in fact closely intertwined. The 1999 case had been settled, and the one Scheindlin suggested be filed as “related” aimed to build on the earlier agreement by using data it generated to prove that rules it required had been ineffective in curbing unconstitutional stops.

The panel also wrote that Scheindlin had signaled bias against the city in her remarks to reporters during the trial. In the most controversial one, she told The New Yorker that “too many” of her peers who had previously worked as federal prosecutors in Manhattan had become “government judges.” That comment undoubtedly riled many former prosecutors now on the bench, but the point she was making was that she treated all litigants equally.

If the panel’s removal of Scheindlin stands, it could jeopardize a prized heritage. Since the mid-twentieth century, federal trial judges have dismantled Jim Crow and other, more recent laws that sanctioned discriminatory patterns affecting housing, schools and the right to vote. They have also tackled abysmal conditions in jails, mental hospitals, homeless shelters and foster care.

Many of those rulings generated public outrage because they ran against ingrained social norms and required public funds to remedy constitutional violations affecting the poor and powerless. Perhaps no federal judge faced more venomous attacks than Frank Johnson Jr., who issued dozens of decisions remedying racial discrimination in Alabama. Segregationist Governor George Wallace branded Johnson an “integrating, scalawagging, carpet-bagging liar.” Crosses were burned on his lawn twice, and his mother’s home was bombed. Johnson had twenty-four-hour federal protection for fifteen years. But could he have persisted if he had faced a hostile circuit court armed with the power to remove him from cases with the stroke of a pen?
Read Next: Emily Jane Goodman on how the Bloomberg administration tainted Judge Scheindlin’s reputation [2].

Source URL: http://www.thenation.com/article/177845/removing-judge-who-ruled-stop-and-frisk-unconstitutional-blow-justice
Links:
[1] https://subscribe.thenation.com/servlet/OrdersGateway?cds_mag_code=NAN&cds_page_id=122425&cds_response_key=I12SART1
%5B2%5D http://www.thenation.com/article/175608/importance-judicial-empathy

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Circuit’s Removal Order: Bad for Scheindlin, Worse for Justice

The Second Circuit U.S. Court of Appeals’ recent order removed Southern District Judge Shira A. Scheindlin from the stop-and-frisk cases she had presided over for 14 years. Aside from tarring her reputation, the order sent a chilling message to any judge who might entertain the thought of issuing an order in a class action designed to remedy a constitutional violation in the way the government functions.

No matter what veneer is put upon it, the removal of a judge is a drastic remedy that turns on a question of whether the judge has compromised the ethical obligation to maintain the appearance of impartiality. The sacking of a judge inevitably carries with it a connotation that the judge’s handling of a case was so egregious that he or she can not be trusted to continue to preside over it.

Was it really necessary for the panel to sideline Scheindlin at the very outset of an appeal before the panel, in its own words, had examined “the merits of this litigation”? There are a number of signs suggesting that it was not.

Simultaneously with its Oct. 31 removal order, the court issued a stay which put on hold Scheindlin’s ruling finding the police department’s stop-and-frisk tactics unconstitutional until the appeal was decided.

Further, the panel’s initial ruling was so rushed that it contained the startling conclusion that Scheindlin “ran afoul” of the U.S. Judicial Code of Conduct. Barely two weeks later the panel had to rescind that language with a “superseding” order that in four instances within 16 pages stated that it was not doing what it had, in fact, done: found that Scheindlin’s conduct had violated the Code’s requirement that judges maintain the appearance of impartiality.

Moreover, the court reached out on its own motion, without a request from the city, to remove Scheindlin, and, in doing so, cited her handling of a court rule that city lawyers had let pass without taking exception to it.

The panel’s unexpected removal order was even more sensitive because it invoked a sparingly used power to remove a judge who had issued a controversial ruling which gave support to an issue Bill de Blasio, the mayor-elect, had made a centerpiece of his campaign.

The ruling also incurred the wrath of Mayor Michael Bloomberg who unleashed a broadside against Scheindlin saying that she had “impugned” the integrity of the police force and had engaged in “brazen activism.”

Standard Handling of Class Action against the Government

Scheindlin’s handling of the lead stop-and-frisk case, Floyd v. City of New York, 08 cv 1034, had been typical of the way any number of judges have handled cases alleging constitutional violations that impact on wide swaths of people, who often are poor and lack political clout. Federal judges throughout the county have handled cases which have tackled constitutional violations in the operations of schools, mental institutions, jails and the conduct of elections, to name a few.

On Aug. 13, after conducting a nine-week trial, Scheindlin found the city’s stop-and-frisk practices in violation of the constitutional protections against unreasonable searches and racial discrimination. To remedy the violations, Scheindlin had ordered the appointment of a monitor to oversee the department’s revision of its practices along with other remedial measures.

Scheindlin first presided over a stop-and-frisk case, which was randomly assigned to her in 1999. That case, Daniels v. City of New York, 99 cv 1695, a citywide class action on behalf of minority males claiming they were targeted for unconstitutional stops, was settled in 2004. Under the settlement, which was, by its terms, to expire at the end of 2007, the city was required to issue rules insuring that stops were carried out in a constitutional manner. The settlement also required police officers to fill out an incident report each time they stopped someone for questioning.

In the Floyd case, which was filed at about the time the Daniels case was to sunset, the plaintiffs, also a class of citywide minority males, were seeking to demonstrate that the police department was failing to comply with the protocols prescribed by the Daniels stipulation. The claims of non-compliance asserted in Floyd were based upon data the Daniels stipulation required the police to collect. The Daniels settlement not only mandated that officers complete incident reports every time a stop took place, but also required the police department to periodically compile the information in them and provide the results to the Daniels plaintiffs. Over the eight years between 2004 and 2012, the department compiled data relating to 4.4 million stops of persons in New York City.

Stain of “Run Afoul” Can Not Be Dodged

The circuit’s hasty, and concededly sloppy, Oct. 31 order removing Scheindlin inevitably cast a serious shadow on her professional standing no matter what spin the three-judge panel— Jose A. Cabranes, John M. Walker Jr. and Barrington D. Parker—subsequently sought to cast upon it in its “superseding’ order issued two weeks later. In its Nov. 13 order, the panel hewed to its original determination to remove Scheindlin but instead did so using softer language than its original assessment that her conduct “ran afoul” of the Code. The second time around the panel found some nice words for Scheindlin, describing her as a “long standing and distinguished jurist.”

The panel’s work, however, must be judged by what it did, not what it wrote. The removal stood, and that means that whatever Scheindlin had done, it was bad enough to require her removal from the case. That is a message that had to reverberate with judges throughout the country as something that could happen to them if they incurred the wrath of an appeals court.

The principal reason requiring Scheindlin’s removal, the panel wrote, was that she had appeared to show bias when she suggested to the plaintiffs that they use a court rule to have a case (subsequently filed as Floyd) assigned directly to her. The rule, known as the related-case rule, is designed to conserve judicial resources by having one judge preside over cases raising the same issues and involving the same, or related, parties. Normally, the assignment of cases is done randomly among all the judges assigned to a courthouse to prevent lawyers from “shopping” for a judge viewed as being favorable to their case. The panel further cited Scheindlin’s statements made to the press near the conclusion of the bench trial in May as having “exacerbated” the “appearance of partiality.”

Floyd and Daniels Closely Linked

As described in the panel’s Oct. 31 and Nov. 13 orders, Scheindlin suggested to the plaintiffs’ lawyers, at a court conference held 10 days before the Daniels stipulation was set to sunset on Dec. 31, 2007, that they file a new lawsuit under the related-case rule. The panel cast the suggestion in a sinister light, noting that Scheindlin had told the plaintiffs’ lawyers that their claim “could be viable” and they “would likely” be “entitle [d] to documents they sought.”

That portrayal glosses over several significant facts: 1) at the Daniels conference the plaintiffs were asking Scheindlin to extend the sunset date so they could bring a motion for contempt because the police department’s stops under the new protocols had not stemmed the departments’ unconstitutional behavior; 2) Scheindlin had rejected the plaintiffs’ request, noting they were trying to put “a square peg in a round hole;” 3) the Daniels case had been randomly assigned to Scheindlin; and 4) the same parties, lawyers and subject matter were involved in both cases; and 5) both the Daniels and Floyd cases were intertwined because the Floyd plaintiffs sought to enforce the Daniels rules with Daniels data.

It’s tough to argue on those facts that the purpose of the rule—judicial economy—was not served by Scheindlin’s handling of Floyd. But could her off-the-cuff assessment of the applicability of the related-case rule during the conference have been wrong? Of course. The city’s position that the suggestion was legally off base calls for an assessment of technical issues concerning both the scope of the rule and when a case is terminated.

But, why didn’t the city object when Floyd was first filed rather than waiting for more than five years until Scheindlin had decided its stop-and-frisk tactics were unconstitutional? Even if Scheindlin had misapplied the related-case rule, removal was out of proportion to the mistaken construction of an internal court rule.

 

Interviews Provocative, Not Biased

The panel cited three press interviews that Scheindlin gave last spring while the trial in Floyd was in progress as revealing her bias. The interviews were provocative and impolitic but did not express views on the legal and factual issues before her and in fact proclaimed a specific intent not to.

She certainly described herself as an activist judge. In an interview with the New Yorker, she said she welcomed the opportunity  “to do what you think is right, what you believe in. You’re pushing the margins of the envelope, being willing to be creative.”

Scheindlin has been on the bench since 1994, and she was not saying anything that lawyers who practice in the Manhattan-based federal court and her peers on the bench did not already know. “Pushing the margins of the envelope” does not mean that she is willing to twist facts or ignore established precedent to achieve a result.

Judicial philosophy should not be a disqualifier. If it was, U.S. Supreme Court Justice Antonin Scalia, whose conservative legal thinking is well known, would never have been permitted to sit on Gore v. Bush, the case that decided the 2000 election. Disqualifying Scheindlin for that reason would mean that they city could credibly ask for her disqualification on any case challenging the application of its policies.

Scheindlin also likely angered many federal judges on both the trial and appeals levels who early in their careers were prosecutors at the U.S. Attorneys Office in Manhattan when she told the New Yorker,  “Too many judges, especially because so many of our judges come out of that [the Southern District U.S. Attorney’s] office become government judges.”

The panel took that statement, and a similar one to the Associated Press, as reflecting bias against the government. But that is not what she said. Unlike some of her peers who might be deferential to the government, she described herself as “independent” and “not afraid to rule against the government” i.e. even-handed in her treatment of all litigants.

Scheindlin Carrying on a Heroic Tradition

In her handling of the stop-and frisk cases Scheindlin has not been deterred by the enormity of the task before her. She has spent 14 of her 19 years on the federal bench handling cases challenging the police department’s interactions with minority males as constitutionally defective. If she ends up remaining on the case (a motion asking that all 13 active judges serving in the Second Circuit review the removal order has temporarily been put on hold), she would likely spend a good number more overseeing the city’s remedial efforts.

Her work in the stop-and-frisk cases carries on a tradition established by some of the nation’s finest jurists. The career of Alabama District Court Judge Frank M. Johnson Jr., who died in 1999, is illustrative of the heroics performed by many federal district judges on hot-button cases. Shortly after being appointed to the bench in 1955, he sat on a three-judge panel that ordered the Montgomery bus system to desegregate. He went on to issue dozens of decisions desegregating Alabama’s schools, dismantling vestiges of Jim Crow laws and reforming its prisons and mental institutions. He crossed swords with Alabama’s segregationist governor George Wallace, and was given 24-hour protection for 15 years after a cross was burned on his lawn in 1956. As courageous as Johnson was, what would he have been able to accomplish if a hostile 5th Circuit had been looking over his shoulder armed with the power to remove him from controversial cases with the stroke of a pen?

©DanielJWise2013

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Cuomo (Sort of) Backs Off Opposition to Age Amendment

When does “No” mean “N0″?

On Oct. 2, NY1 aired footage of Governor Andrew Cuomo saying, in response to a reporter’s question, “I don’t support” the age amendment. The amendment, which would raise some judges’ required retirement age to 80, will be before voters on Nov. 5.

Yesterday, when NY1 reporter Zack Fink again put the question to the governor at a press conference in Albany, Cuomo said, “I haven’t taken a position on it.” View Cuomo’s press conference.

Sure, Cuomo put a lot of qualifiers around that “no position” position. His full statement was: “It’s not my referendum. I wasn’t involved in it. I understand the issue. I think there are serious questions raised by it, but I haven’t taken a position.” Less than a week earlier, a spokeswoman for Cuomo had told the Daily News that Cuomo’s “reservations” about the amendment “remain.”

But, in the 21 days between the two statements, Cuomo has been telling editorial boards that the amendment covers the “Wrong Courts”, helps the “Wrong Judges” and comes at “the Wrong Time.” Read my Oct. 18 story.

I doubt Cuomo told the editors and reporters who assembled for those sessions, “Oh by the way, tell your readers to vote their conscience.”

This is a classic case of a politician seeking to have it both ways—saying he has “no position,” while working behind the scenes to defeat the amendment. Such circumlocution can’t help but make voters even more leery about what their elected leaders tell them.

Nonetheless, one can’t blame the Governor for opposing the measure. The measure is tainted by its timing. With Chief Judge Lippman’s 70th birthday coming in 2015 and Judge Eugene Pigott’s the next year, the measure has a known impact—if adopted, it would allow both judges to continue to sit on the state’s highest court until well past the end of a second Cuomo term, which seems likely.

Unsuccessful efforts to raise the age limit go back at least 30 years. Instead of making the amendment effective immediately, what would have been the harm in pushing the start date back to 2018 when a successor of unknown political affiliation would likely be Governor.

Nonetheless, I am tempted to say vote for the amendment because Lippman has been such a terrific chief judge. With a gift for gab and formidable persuasive powers, Lippman has been able to cobble together majorities on momentous issues that ordinarily would split the Court down liberal/conservative lines.

Since 2009, when Lippman became chief judge, the Court has had four Republican judges and three Democrats, though some of the faces have changed. With four-judge majorities, Lippman has written opinions requiring the police to obtain a warrant before affixing a GPS device to a suspect’s car; upholding a Democratic governor’s power to appoint a lieutenant governor when the position becomes vacant; and allowing a lawsuit to move forward which challenges the system of providing counsel to indigent criminal defendants in five counties as violating the Fifth Amendment right to counsel.

But voting for the man rather than the issue wouldn’t be very principled, would it? After much back and forth, I have decided to vote against the amendment, because as Victor Kovner argued (click here for earlier story), the amendment would give an extra four years to Supreme Court justices, who almost invariably are permitted to sit until they are 76. The leaves some 760 lower court judges out in the cold, who must retire at age 70 after years of working in the state’s most hard pressed courts, particularly, Family and Criminal courts. Despite Lippman’s commitment to go back to the well a second time to raise the age limit for those judges, the chances of success seem remote.

I hope that is clear. It’s a “position,” not a “reservation.”

 

 

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Victor Kovner: The Voice Behind Growing Opposition to Age Amendment

Governor Andrew Cuomo’s PowerPoint presentation to editorial boards in New York City, opposing the adoption of a constitutional amendment to raise the retirement age for some judges, borrowed heavily from a memorandum written by former New York City Corporation Counsel Victor Kovner, a longtime champion of merit selection of judges. The full text of Kovner’s memorandum is published immediately below this article.

After reading my article on Cuomo’s PowerPoint presentation, Kovner contacted me to advise that he was the author of the language that the governor had used in his presentation. As I reported last Friday (Oct. 18) that the key language in Cuomo’s PowerPoint presentation was that the amendment “impacts the ‘Wrong Courts’, provides relief to the ‘Wrong Judges’ and comes at the ‘Wrong Time.’ ” At my request, Kovner provided me with a copy of his memorandum. Click here to read my article.

 

The precise words Kovner used in the opening paragraph were, “In short, [the amendment] raises the retirement age for the wrong judges, to the wrong ages, in the wrong courts at the wrong time.”

The New York Daily News cited that language, attributing it to an “eminent court observer” in its editorial, published on Monday (Oct. 21) opposing the adoption of the amendment which would raise the retirement age of Court of Appeals judges to 80 from 70, and as practical matter extend the time Supreme Court justices can sit by four years to 80 from 76. Click here to read the Daily News editorial.

 

Also, in opposing adoption of the amendment yesterday, the Citizen Union, one of the New York City’s pre-eminent good government groups, incorporated many of the Kovner’s arguments in a statement explaining its stance. Click here for Citizen Union’s statement. On Oct. 14, the Albany Times-Union urged its readers to vote for the amendment. Click here to read the editiorial.

Though using the same slogans, Kovner’s reasoning was more nuanced, and less combative, than the governor’s presentation. Under the rubric of the “Wrong Time,” the PowerPoint raises the issue that approval of the amendment will be costly and wasteful by providing an added incentive for judges to “double dip” i.e. taking advantage of a loophole that allows judges who are appointed to a new court to collect a pension at the same time they receive a salary for their work on the new court. The Kovner memorandum did not mention the double-dipping issue.

The double-dipping issue raised by the governor at his meeting with the Daily News’ board meeting, had the scent of scandal, and once reporters from the Daily New raised the issue with OCA, a new rule was immediately issued squelching the issue for the justices who would benefit from a new retirement age. Click here to read the Daily News article.

OCA hustled out the rule change even though, according to its own figures, only 14 of the state system’s 1,100 judges have taken advantage of the anomaly that allows some judges to collect both a pension and salary. And only five of those would directly benefit if the amendment passes.

Similarly, under the heading of the “Wrong Judges,” the Cuomo presentation describes the amendment as protecting Republican-appointed judges on the Court of Appeals, two of whom would “get additional time on the bench.”  Kovner makes no mention of party affiliation, but instead faults the “half a loaf” approach (my characterization) being taken by OCA in support of the amendment.

In meetings with good government groups, both Chief Judge Jonathan Lippman and Chief Administrative Judge A. Gail Prudenti have ardently argued in favor of a two-step process — first pass the current amendment, which will be before the state’s voter on election day, Nov. 5 — and then put forward an amendment that would raise the retirement age for judges sitting on New Yorks’ seven lower courts, including Family, Criminal, and Civil courts. The amendment covers about 30 percent of the state’s 1,100 judges. That would leave 70 percent of the state’s judges at the status quo unless a second amendment is adopted.

Kovner is unpersuaded that OCA’s strategy will work because of the amendment’s substance and its timing. In his memorandum, he cites statistics that the amendment would add 44 judges over the next four years at a cost of at least $22 million.

Kovner goes on to question OCA’s strategy as an “inefficient” way to increase the number of judges in Family, and other, lower courts.  The raising of Supreme Court justices retirement age by four years from 76 to 80, he wrote, is “not in the public interest” because, while “some judges of that age” may be able to handle the intense pressures of a trial calendar, “many will not.”

In short, though he does not say so expressly, the amendment’s timing is off because it will sap public and legislative support for an attempt to win passage of a second amendment in 2015 to raise the retirement age of the remaining 70 percent of the state’s judiciary. Over the last several years, the state Legislature has refused to take up OCA sponsored bills to fund more Family Court judges.

Likewise, the current amendment is aimed at the wrong judges, since many of them are unlikely to be able to bear the burdens of a hectic trial calendar.

©DanielJWise2013

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Full Text of Kovner’s Memorandum

MEMORANDUM

From:     Victor A. Kovner
Date:      September 27, 2013
Subject:  Retirement Age of Judges

Let me summarize the case against the amendment.  In short, it raises the retirement age for the wrong judges, to the wrong ages, in the wrong courts, at the wrong time.

Most of us start with common ground.  We join in the consensus that we need more trial judges and that in 2013 to compel retirement of any judge at the age of 70 makes little sense.

There are more than 1,100 judges of courts of record in New York.  There are approximately 350 Supreme Court Justices and approximately 760 judges in other trial courts.  Supreme Court Justices currently may sit until the age of 76, subject only to receiving three nearly automatic two‑year certifications after reaching 70.  In contrast, the remaining judges must retire at 70.  When Supreme Court Justices are first certificated, their seats become vacant and are filled at the next election.

In 2011 and again in 2013, the Office of Court Administration proposed a constitutional amendment lifting the retirement age for all judges (except for Judges at the Court of Appeals) from the age of 70 to 74.[1]  Unfortunately, our State Legislature chose to adopt a different route at the behest of the Association of Supreme Court Justices.  Instead, it proposed to increase the maximum retirement age only for New York’s 350 Supreme Court justices from 76 to 80 and in addition increased the maximum retirement age for the seven judges of the Court of Appeals from 70 to 80.  The remaining judges, most of New York’s judiciary, were left facing forced retirement at 70.  Consistent with its closed legislative process, this action was made without the benefit of a single public hearing or debate and was completed in the early hours of the final day of this legislative session.

If the proposed Constitutional Amendment is adopted by the public in November, through 2017 forty‑four (44) currently certificated Supreme Court Justices will be eligible to continue to serve until the age of 80.  The increased salary impact (including staff and support) to the Judiciary Budget is roughly between $500,000 and $800,000 per Justice per year under the present compensation structure, which should be increased in the next year or two.  Advocates for the adoption of this Constitutional Amendment, many of whom are quite ambivalent on the subject, argue that we need the additional certificated judges, that Judge Lippman and the Office of Court Administration have indicated that the certification process will be strengthened, at least some of the additional judges (not those between 76 and 80) will be assigned to sit in courts where the need for additional justices is more urgent, including the Family Court, and that the issue of raising the retirement age for the other trial court judges to 74 can be considered in 2015 and 2016.  Some have been persuaded by this argument.  I am not among them.

The problem with extending the term of thirty to forty additional certificated trial judges is that each and every one will be between the age of 76 and 80.  In my view, it is not in the public interest to have so many busy trial courts manned by judges of that age.  While some may well be able to serve well, many will not.  The demands placed on our trial court judges are enormous, and will be more than challenging for jurists of that age.  The burden on the Judiciary Budget will be in the range of at least $30 million or more per annum, monies that will, at best, be inefficiently spent.  Clearly, the most effective and cost‑effective way to proceed is to raise the general retirement age of the judiciary from 70 to 74, as the Office of Court Administration had initially proposed, by certification or otherwise, and to seek the creation of additional judgeships in the State Legislature in the courts where they are most needed.  In contrast, passing this amendment will only further the divide in retirement ages between Supreme Court Justices and those judges sitting in our lower courts.

The Association of Supreme Court Justices, which has been successful thus far, has long insisted on the special status of that court within the Judiciary.  Justices of the Supreme Court already receive higher salaries than many other trial judges, and benefit from greater staff and support.  All of them are elected, having been nominated by political party Judicial District Conventions.  To extend only their terms while leaving the far larger cohort of the judiciary forced to retire at the age of 70 is counterproductive.  The best way to preserve the expertise that is lost because of the current retirement age and relieve the burdens on the system at the lowest cost is a Constitutional Amendment simplifying the judiciary by merging a number of lower courts into the Supreme Court, where a larger number of judges would be eligible to serve until the age of 76, and providing that lower court judges would be able to serve until the age of 74.

Judge Lippman has also promised to strengthen the certification process with public hearings and outside review.  He should be commended him for his efforts to mitigate the unfortunate priorities of this amendment, and make the best out of a bad amendment.  But, as the old French proverb goes, one cannot make a silk purse out of a sow’s ear.

There are also troublesome issues relating to the extension of the terms of members of the Court of Appeals.  In short, the proposed Constitutional Amendment would allow Court of Appeals Judges to serve up to the age of 80 but would not allow them to receive new terms after they reach the age of 70.  The end result of this proposal is that the seven judges on the Court of Appeals will all have different retirement ages, as follows:

  • Judges whose terms expire after the end of the year of their 70th birthday, even if they are not yet 71 years old at the end of their term, cannot be reappointed.  In other words, any judge appointed or reappointed between the ages of 57 and 66 will have to retire before age 80.
  • Judges whose terms expire before the end of the year of their 70th birthday but after their 66th birthday, can be reappointed and serve until they turn 80.

To provide a concrete example, a judge appointed or reappointed at age 57 can serve until he/she turns 71, with no possibility of reappointment, but a judge appointed at age 70, as long as the appointment takes place before the end of the year in which he/she turned 70, can serve until age 80.  In our view, this arbitrary system – which keys off the time when a judge’s term begins as opposed to the current system of a uniform retirement age for Court of Appeals Judges makes no sense.  It would lead to a patchwork quilt of retirement ages for what is intended to be a unified court with seven coequal judges, as illustrated in the attached chart.

Age of Appointment/Reappointment of a Court of Appeals Judge and Corresponding Mandatory Retirement Age Under the Proposed Constitutional Amendment

Age of Appointment/

Reappointment

Retirement Age

Maximum Terms/

Maximum Years

42

80 (if reappointed at ages 56 and 70)

3/42

43

71 (if reappointed at age 57)

2/28

44

72 (if reappointed at age 58)

2/28

45

73 (if reappointed at age 59)

2/28

46

74 (if reappointed at age 60)

2/28

47

75 (if reappointed at age 61)

2/28

48

76 (if reappointed at age 62)

2/28

49

77 (if reappointed at age 63)

2/28

50

78 (if reappointed at age 64)

2/28

51

79 (if reappointed at age 65)

2/28

52

80 (if reappointed at age 66)

2/28

53

80 (if reappointed at age 67)

2/27

54

80 (if reappointed at age 68)

2/26

55

80 (if reappointed at age 69)

2/25

56

80 (if reappointed at age 70)

2/24

57

71

1/14

58

72

1/14

59

73

1/14

60

74

1/14

61

75

1/14

62

76

1/14

63

77

1/14

64

78

1/14

65

79

1/14

66

80

1/14

67

80

1/13

68

80

1/12

69

80

1/11

70

80

1/10


[1] This recommendation implemented the conclusions of a New York State Bar report known as the Milonas report.

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Cuomo Lobbies Editorial Boards against Age Amendment

Governor Andrew Cuomo has lobbied editorial boards of New York City newspapers to oppose an amendment to the state Constitution, which would raise the required retirement age of Court of Appeals judges and Supreme Court justices to 80.

Since 1869, the state Constitution in Article 6, Section 25 has required all judges to retire at age 70. But an exception has been carved out for Supreme Court justices, who, if they are certificated by the Office of Court Administration as fit to sit on the bench, can serve until they turn 76. A referendum on the issue will go before the state’s voters on election day, Nov. 5

According to four slides in a power point presentation, which the Governor made at meetings with editorial boards in recent days, the amendment impacts the “Wrong Courts,” provides relief to the “Wrong Judges,” and comes at the “Wrong Time.” A copy of the power point presentation was made available to WiseLawNY. The governor’s office did not respond to a call requesting a comment.

Under the rubric of the “Wrong Time,” a slide asserts that the amendment will allow more judges to “double dip” by simultaneously collecting a pension and receiving a salary while sitting on the Supreme Court as a “certificated” justice. The result is that the justices will be taking home a total of “roughly” $300,000 a year. Justices currently receive an annual salary of $167,000.

An article in yesterday’s New York Daily News (Oct. 17) described Cuomo as arguing at a meeting with the newspaper’s editorial board that extending the retirement age of Supreme Court justices from 76 to 80 “could open the floodgates to more double dipping.” Click here to read the Daily News article.

According to OCA, only 14 of some 1,300 judges statewide have taken advantage of a loophole that allows judges, when they move from one court to another, to “retire” from the court they are leaving and collect a pension. Meanwhile they are paid a salary, often higher than previously, in their new position. Of the 14 collecting both a salary and pension, only five are are certificated justices between the ages of 71 and 76.

Nonetheless, the court system moved promptly to issue a rule that will bar the practice of double-dipping after the Daily News brought the issue to OCA’s attention. Click here for an article in today’s New York Law Journal (Oct. 18) about the new rule.

Other slides of the Governor’s presentation made the following negative points about the proposed amendment:

• “The amendment takes care of the political class: Supreme Court judges are nominated through the party machines rather than primaries.”

• “It also protects the Chief Judge, who will get to serve an additional 7 years under the amendment” and two Republican judges would get additional time on the bench.” All of this under the heading “Wrong Judges.”

• The amendment “only impacts State Supreme and Court of Appeals, exempting all trial courts.”

If the retirement age for Court of Appeals judges is raised to 80, Cuomo will lose the opportunity to appoint replacements for two of the seven judges on the Court: Chief Judge Jonathan Lippman and Judge Eugene Pigott Jr. Under the state Constitution as now written, Lippman would be required to retire at the end of 2015, the year in which he turns 70 as would Pigott in 2016. Assuming he has a second term, Cuomo would remain as governor until 2018.

Even if the amendment passes, Cuomo will retain the ability to appoint replacements for Justice Robert S. Smith and Susan Phillips Read, both of whom will be 70 or over when their 14-year terms on the Court expire in 2017. The amendment bars the governor from appointing or reappointing any judge to the Court who turns 70 in the year of his or her appointment.

Three judges are not affected by the amendment. Judge Victoria A. Graffeo, a Republican, who is 62, comes up for reappointment in 2014, and Cuomo will have to decided whether to reappoint her if she seeks it. Earlier this year, Cuomo made his first two appointments to the bench, Judges Sheila Abdus-Salaam and Jenny Rivera, both Democrats. Neither will turn 70 until well after Cuomo has left office.

Limited Impact on Appellate Division Appointments

The amendment operates differently with respect to Supreme Court justices. Under current law, Supreme Court justices must retire at age 70 but are eligible to be “certificated” by the Office of Court Administration as fit to remain on the bench for three additional two-year terms until they are 76.

The amendment would extend the number of certificated terms “retired” justices are eligible to receive to five. The bottom line is that the amendment would allow most justices to serve an additional four years until they turn 80. As a practical matter, OCA finds most justices fit for continued service, and that practice would likely continue whether the limit is 76 or 80.

In terms of judicial selection, the governor is responsible for the appointment of judges to two courts: the Court of Appeals and the Appellate Division, which consists of four separate departments, each with their own judges.

I reviewed the ages of the 53 judges now sitting in the four departments of the Appellate Division, and found that the application of the amendment would have limited impact upon the governor’s appointment authority. I found only three Appellate Division justices whom the amendment would save from a forced retirement during a two-term Cuomo governorship: Justice Karla Moskowitz in the First Department, who without the amendment would be required to step down in 2017; Justice Edward O. Spain, who likewise would be required to leave the bench in 2017; and Fourth Department Justice Salvatore Martoche in 2016.

Several lawyers, who asked not to be identified, said they could understand that Governor Cuomo would be dismayed by the amendment, particularly because it would deprive him of the ability to select the next chief judge of the Court of Appeals.  “It has all the earmarks of a political deal engineered by Lippman and Assembly Speaker Sheldon Silver to box the governor in,” said one. Noting that Lippman and Silver grew up together on Manhattan’s Lower East Side and have remained close since,” the lawyer added, “The legislature didn’t do that for [Lippman’s predecessor] Chief Judge Judith S. Kaye.”

But John Moscow, a partner at Baker & Hostetler, pointed instead to policy reasons why the governor might oppose the lifting of the age limit. Extending the age limit, he said, tends “to freeze the bench as it is and makes it more difficult for new groups to have an impact on the selection of judges.” It also “denies the governor the right to influence selections and in some cases to make new appointments,” he added.

Judge Smith, who as noted above will have to retire in 2017, even if the amendment passes, described the 70-year age limit as an anachronism. Compared to 1869 when the limit was set at 70, he wrote in an op-ed piece in the Daily News, “Today, most judges in their 70s have the brains and energy to do as good a job as they ever did—maybe even better, because judging is a job in which long experience helps. Under current rules New York is firing a lot of talented employees when they are in top form.”

David Bookstaver, OCA’s spokesman, noted that in 1869 the average life expectancy was only 40 years. He added that passage would provide a boost in judicial firepower, which “will finally provide the judiciary with the resources to address the backlogs in many of our courts.”

“In the last 20 years,” he pointed out, caseloads have increased by 50 percent and judicial resources only by 8 percent.” The amendment will address that dichotomy,” he added.

©DanielJWise

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